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Spotless Services Australia Limited

Spotless Services Australia Limited

Case [2013] FWC 4484 9 July 2013

Redundancy Pay

Acceptable Alternative Employment

Contract Formation

Employment & Labour Law

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[2013] FWC 4484

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s 120 - Application to vary redundancy pay for other employment or incapacity to pay

Spotless Services Australia Limited
(C2013/594)

Hospitality industry
DEPUTY PRESIDENT SAMS	SYDNEY, 9 JULY 2013

Application to vary redundancy pay - contract catering industry - acceptable alternative employment - no change to wage rates or conditions - additional travel time - alternative employment reasonable - redundancy pay reduced to nil - determination made.

[1] Spotless Services Australia Pty Ltd (the ‘applicant’ or ‘Spotless’) has filed an application, pursuant to s 120 of the Fair Work Act 2009 (the ‘Act’) to vary redundancy pay in respect to two former employees, Ms Catherine McLeish and Ms Marilyn Thompson (the ‘employees’) who were offered alternative employment. The background facts to this matter are relatively straightforward. Both employees were employed at the Tomago Aluminium site at Tomago, New South Wales, where the applicant had a contract for providing various services which included catering. Both employees were employed at the site under the Hospitality Industry (General) Award 2010 [MA000009] (the ‘Award’).

[2] Ms McLeish was employed from 29 September 1997 as a Catering Attendant working 27.5 hours per week at an hourly rate of $17.52 (at the time of termination). Ms Thompson commenced employment at the site on 15 December 2010 as a Catering Attendant working 25 hours per week at the same hourly rate. The employees worked at night and on weekends. Both employees travelled to and from work in their private cars, from their homes in Rutherford, New South Wales.

[3] On 11 March 2013, the employees were informed that, as a result of changed requirements by Tomago, there would need to be a reduction in catering hours provided by Spotless at the site. It was indicated to them that alternative locations for re-employment were being investigated at other sites where Spotless provided catering and other services.

[4] On 22 March 2013, and again on 5 April 2013, the employees were informed that alternative work had been identified for them at Eraring Power Station, Eraring, New South Wales. Importantly, they were to be re-employed in the same roles, with the same hours and rates of pay. They were also offered cleaning roles at Greenhills Stockland (Ms McLeish) and Jesmond Stockland (Ms Thompson). The cleaning roles were rejected as not comparable.

[5] However, the employees declined the offers of re-employment at Eraring, citing the additional distance and time required to travel to the new location. Using Google Search, Spotless assessed the distance from:

a) Rutherford to Tomago as 25.1km, taking 25 minutes; and

b) Rutherford to Eraring as 53.7km, taking 50 minutes.

[6] On this basis, it was assumed the employees would have a net additional travel time to Eraring of 25 minutes each way; effectively doubling the time they had previously travelled to Tomago. Spotless maintains that the additional travel time was not unreasonable and the offers of re-employment therefore constituted acceptable alternative employment. In these…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: Spotless Services Australia Limited [2013] FWC 4484
Case: [2013] FWC 4484
Decision Date: 9 JULY 2013

CaseChat Overview and Summary

In Spotless Services Australia Limited, the applicant sought a variation of a redundancy payment determination made by Fair Work Australia. The respondent, Fair Work Australia, had determined that the applicant was entitled to no redundancy pay for the dismissal of the employee, who had worked in the contract catering industry. The central dispute was whether the employee had been offered acceptable alternative employment, which would affect the entitlement to redundancy pay. The matter was heard in the Fair Work Commission of Australia.

The primary legal issue was whether the alternative employment offered to the employee was reasonable and acceptable, despite there being no change in wage rates or conditions. The court needed to determine if the additional travel time required for the alternative employment made it unreasonable. This required a consideration of the circumstances of the alternative employment and the impact of the additional travel time on the employee's circumstances.

The Fair Work Commission found that the alternative employment offered was reasonable. Despite the additional travel time, the court concluded that it did not render the alternative employment unreasonable. The court considered that the employee had been offered employment that was equivalent in terms of wages and conditions, and the additional travel time was not a significant enough detriment to make the alternative employment unacceptable. Consequently, the Commission determined that the redundancy pay should be reduced to nil.

The Fair Work Commission made a determination that the applicant was not entitled to any redundancy pay. This decision was based on the finding that the alternative employment offered to the employee was acceptable, despite the additional travel time. The court's determination was made in accordance with the relevant provisions of the Fair Work Act.

Orders